Per Hon’ble Mr.D.S.Mahra, J.M.

The applicant was appointed as a Lecturer (Chemistry) in the

respondents department in the year 2010. He was transferred on 6.5.2022

from GBHSS, Kreeri, Baramulla to GBHSS Kothibagh, Srinagar by the

Principal Secretary to the Govt. of India. Within a year and half the

applicant has been further transferred by the Director, School Education

Department vide transfer order dated 18.10.2023 from GBHSS, Kothibagh,

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Srinagar to BSSS, Dawer, Gurez, Bandipora. The applicant has impugned

the said transfer order dated 18.10.2023 in the present OA. Learned counsel

for the applicant submits that the transfer order dated 18.10.2023 has been

passed by an officer who is not competent to pass such order of transfer.

Learned counsel for the applicant further submits that the competent

authority to transfer the applicant was Principal Secretary to the Govt. of

India and not the Director as the earlier transfer order dated 6.5.2022 was

issued by the Principal Secretary to Govt. of India whereas the present

transfer order has been passed by the Director, School Education. Learned

counsel for the applicant further submits that the impugned transfer order

has been passed in violation of the transfer policy because the first gazetted

level officer in the department is to be transferred by the Administrative

Head on a proposal submitted by the head of the Department i.e. Director.

2.

On the other hand learned counsel for the respondents submits that it

is a routine transfer. The applicant has been transferred as per transfer

policy and the rules governing his service. It was in the interest of

administration that the applicant has been transferred.

3.

Heard the learned counsel for both the parties.

4.

Transfer is a part of service. A Government servant cannot claim to

remain at a particular place of posting unless his appointment itself is a

non-transferable post. Transfer means movement of a Government servant

from one place to another place to take up the duties of his service. In other

words an employee has no vested right to remain at one particular place of

posting and it is always within the power of the employer to transfer its

employees in the interest of the administration. Where an employee is to be

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transferred and how to use the services of an employee is always the

discretion of an employer. However, in making a transfer of an employee the

said

order

cannot

be

in

violation

the

mandatory/statutory

provisions/Rules governing the said service. If the statutory provision

requires that the competent authority has to obtain the approval of the

higher authority then the transfer without getting the approval of the higher

authority would be violative of the said rules. Similarly, if an order is passed

in violation of the statutory policy framed by the department, again that will

be violative of the policy so framed. In the present case as per the policy

framed by the respondents the Director is not competent to transfer the

applicant for a simple reason that as per the policy the Director was to take

a prior approval of the Principal Secretary or the order of transfer is to be

passed by the Govt. i.e. Principal Secretary to the Govt.

In the present case –

(1)

The said order has been passed by the Director himself without

takin approval from the competent authority i.e. Principal

Secretary to Govt.;

(2)

The order has been passed by the Director himself and not by

the competent authority i.e. Principal Secretary to the Govt. who

is competent to pass the said transfer order;

(3)

The applicant was transferred earlier by the Principal Secretary

to Govt., School Education department on 6.5.2022 and after

completing one and half year the applicant was again

transferred on 18.10.2023 in violation of the transfer policy.

(4)

The transfer of the applicant is in violation of statutory rules.

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5.

In view of the above, the said transfer order dated 18.10.2023 is

violative of the rules framed by the respondents and the said